Piecemeal application of freedom of association: the case of Malawi

Open submission by Edward Chaka, Executive Director, Peoples Federation for National Peace and Development (PEFENAP), Blantyre, Malawi

Democracy, in our view, hinges on citizens’ ability to inform public policy, law and development plans. In the case of Malawi, this is done when central and local government officials engage the citizenry in consultations before major policy and legislative changes. In this case, the changes are said to have originated from the people, by virtue of their participation in making contributions. Additionally, citizens can contribute to national debates and other discourses by making informed decisions - for example, in the run-up to national elections in representative democracies such as Malawi. Malawi has a presidential system of electing leaders, in the sense that heads of state are voted in by direct suffrage, as opposed to the parliamentary system that is in place in countries such as South Africa, where those eligible to vote elect members of parliament and the party with the majority of members appoints a president.

The Constitution of the Republic of Malawi, cognisant of the fact that citizens can only make informed decisions if they are fully involved in national programmes, provides for freedoms such as those of assembly, expression and association, as well as freedom to impart an opinion, among others. While Malawi has made significant progress in respecting rights such as the right of imparting an opinion, freedom of assembly and freedom of expression, challenges abound because the country still uses colonial-era insult laws. For example, the country still recognises rules that make it an offence to talk negatively about the president, to the extent that politicians such as Kamlepo Kalua have, in the past 10 years, been arrested for referring to the president in a manner deemed demeaning. Kalua was arrested for referring to former President Bingu wa Mutharika as ‘Kangwazi’ (little giant). The government has also been reluctant to sign the Table Mountain Declaration, which calls for states to decriminalise insult laws and pave the way for the respect of more freedoms, such as the right to speak freely about national leaders without fear of arrest.

Another area of concern, which defeats the purpose of democracy, is that of the selective application of the freedom of assembly and association provisions. This started in 2011, when former president Bingu wa Mutharika suggested, at a public rally, that civil society organisations, such as People’s Federation for National Peace and Development (PEFENAP), which wanted to organise demonstrations - a right enshrined in the Constitution of the Republic of Malawi - would be required to make an advance payment of K2 million (approx. US$2,800) as collateral for damages that may occur in the course of the demonstrations. It seems that Malawi’s political leaders are yet to appreciate the meaning of democracy because, when civil society organisations organised national demonstrations on 27 April 2018, the ruling Democratic Progressive Party (DPP) as well as government leaders organised a meeting at which they warned that they did not want people in the Southern Region - the stronghold of the DPP - to demonstrate, with the ruling party Regional Governor for the Southern Region, Charles Mchacha, saying openly that he would not allow demonstrations in his region. This raised fear among the citizenry because the DPP employed similar tactics in 2011, when civil society organisations organised nationwide demonstrations on 20 July 2011. A day before the demonstrations, DPP Cadets - a youth wing of the party - brandished machetes in open vehicles, as a tactic of scaring citizens from taking part in the demonstrations. Consequently, 20 people would die on the day of the demonstrations and, although the government promised to compensate families of the victims, nothing tangible has happened. Not surprisingly, during the 27 April 2018 demonstrations, the Southern Region registered the smallest number of demonstrators, as opposed to demonstrations held simultaneously in the cities of Lilongwe and Zomba (in what Malawi’s political parties describe as the Eastern Region; Malawi has three administrative regions, namely Southern, Central and Northern Region) and Mzuzu, as well as Karonga District. 

In the wake of challenges such as these - the selective application of freedoms of assembly and association and the maintenance of insult laws, against democratic principles - PEFENAP has been promoting initiatives that encourage peaceful engagement, notably through sensitisation meetings, round tables, contributions to national events such as budget presentations, the release of press statements, press briefings, peace marches and public sensitisation meetings, among other strategies, in a bid to promote ideals of democracy that we hope may be replicated in other countries. This is in recognition of the fact that, while Malawi is a democracy, a nascent democracy faces challenges that may negatively impact on citizens’ participation in democracy. This challenge is typified by the state’s reluctance to let people freely demonstrate against political, social and economic ills, a right that is propagated in human rights instruments, including the Universal Declaration of Human Rights. In a working democracy, citizens express themselves freely and contribute to national development affairs without fear of reprisals. This is not the case in Malawi when it comes to the right to hold public demonstrations, something that is closely linked to the democratic tenets of freedom of association and assembly.

PEFENAP’s topic, ‘piecemeal application of freedom of association: the case of Malawi’, relates to the overall theme of ‘reimagining democracy’ because the suppression of certain freedoms in a democracy is counter-productive and serves as a pointer that there is a long way to go to meet acceptable standards followed by democratic states. Due to piecemeal application of citizens’ right to demonstrate and associate, for example, as evidenced by the government’s heavy-handed tactics whenever civil society organisations organise peaceful demonstrations, Malawians still long for a time their freedoms will be respected; hence, they still aspire for real democracy, characterised by full respect for human rights. The status quo is such that the citizenry can only imagine what real democracy, characterised by respect for the rule of law, accountability and transparency, is really like. Nevertheless, citizens can still contribute, through civil society organisations like PEFENAP, to national debate by suggesting, through reports like these, mechanisms that would help Malawi’s leaders appreciate that constructive criticism and civic engagement is at the centre of citizens’ participation in national democracy. This recognises the fact that, in a democracy, citizens’ participation is not limited to voting. Continued involvement, even when representatives - presidents, legislators, judicial officers - have been elected, keeps the doors of engagement open, giving citizens a chance to contribute their views, including on the nature of democracy they want, and will help Malawi’s democracy to become a shining example to other countries. As things stand, Malawians are not where they want to be, as far as democracy is concerned; hence, the need for them to express themselves on how they want things to pan out.

Nevertheless, by participating in national events such as the 27 April peaceful demonstrations, civil society organisations such as PEFENAP show that, because Malawi belongs to all citizens, heavy-handed tactics cannot work and civil society organisations cannot be intimidated into silence. This is more so because civil society organisations are legal entities, registered either under the Trustees Incorporation Act or Companies Act, as other organisations are. By participating in the demonstrations, civil society responds to emerging issues in democracy, including the appointment of public officials on nepotistic grounds, the appointment to public positions of officials suspected to have taken part in criminal activities, and delays in investigating murders of those who work in governance institutions, such as Issa Njaunju, an Anti-Corruption Bureau (ACB) officer who was found dead in the Central Region at the height of investigations on high-level corruption. Njaunju, who was Director of Operations and Administration at the ACB, was murdered in 2015 and his car was burnt in the capital, Lilongwe.

The Malawi Police Service is also yet to finalise investigations into the murder of University of Malawi student, Robert Chasowa, who was killed in 2011 by unknown people. Apparently, Chasowa was one of the people hired to suppress the 20 July 2011 nationwide demonstrations but things seem to have gone sour with the government officials he was working with, hence his mysterious murder.

Other issues at the heart of the demonstrations were the need for the executive arm of the government to reverse the K4 billion (approx. US$5.3 million) pay-out to 86 members of parliament who voted against Electoral (Amendment) Reforms Bills. In a parliament with 193 members, the executive secretly decided to give K86 billion (approx. US$113 million) to selected legislators, raising fears of underhand tactics, as democracy demands accountability. The Electoral (Amendment) Reforms Bills were, among other things, premised on changing the voting system from first-past-the-post, which has led to the election of presidents who get less than half of the votes in national elections, to 50+1 per cent system, which would ensure that presidents garner over half the votes cast for them, in order to be accepted by those they govern since, according to the Constitution, leaders rule on trust.

Civil society organisations were also against continued impunity of the Malawi Communications Regulatory Authority (MACRA), which rushes to punish privately owned broadcasters but does nothing to force state broadcaster Malawi Broadcasting Corporation (MBC) to abide by regulations. Contrary to the heavy handed-approach adopted when dealing with private media, MACRA fails to act on the MBC’s blatant disregard for media ethics, with the effect that the state broadcaster works literally as the mouthpiece of ruling parties, instead of serving taxpayers, who finance its operations. The other issues were persistent blackouts, which sometimes last for 12 hours, in the process impairing private sector operations, continued poor service delivery in public institutions, poor conditions of service for public servants and high unemployment levels among young people.

In short, civil society organisations are raising awareness about current challenges facing Malawi while demanding answers from the national leadership. In this case, civil society organisations responded to the challenges by organising peaceful demonstrations and delivering petitions, with set timeframes for responses. As usual, the government responded by sending local government - as opposed to central government - officials to receive the petitions, against the wishes of demonstration organisers to have the petitions received by the President, Peter Mutharika, or his deputy, Saulos Chilima. This demand was one way of making sure that the petitions would be received by the top leadership of the country. Initially, the strategy seems to have worked as Presidential Press Secretary Mgeme Kalirani announced in early May 2018 that the President had set up a committee, led by the Chief Secretary to the Government, that would look into the issues presented by civil society organisations. However, there are indications that the government was just playing its cards well, as the Chief Secretary to the Government told the media (The Daily Times) later (on 20 May 2018) that he did not know anything about the existence of the committee. This means the government still treats civil society organisations as opposition or opponents, and continues to pay lip service to issues of national concern whenever they are presented by civil society. In an ideal case, the government is supposed to be inclusive.

Moving forward, it is clear that there is need for civil society organisations to, sometimes, engage the country’s top leadership directly, instead of delivering messages through demonstrations, as government officials, including President Peter Mutharika, have openly spoken against demonstrations, which they believe are sponsored by the opposition as well as development partners who are not happy with progress made in promoting good governance. Alternatively, civil society organisations should experiment with other strategies; otherwise, they run the risk of becoming predictable, strategically, and ineffective, since DPP governments seem to regard demonstrations as anathema to democracy. There is also need to offer civic education to young people affiliated to the ruling party on their role in democracy. Currently, party youth groups are used for drowning the voice of reason instead of being used as tools of national development. This is a practice that started with the one-party regime of the Malawi Congress Party (1964-1994), which had a paramilitary wing called the Malawi Young Pioneers as well as the Youth Leaguers, both of which used to mete out instant justice; and continued with the United Democratic Front (1994-5 February 2005), which had the Young Democrats, who used to terrorise citizens who were opposed to the open term and then third-term bid of former President Bakili Muluzi); the DPP’s Cadets (5 February 2005-5 April 2012), who used to threaten citizens opposed to the dictatorial tendencies of former President Bingu; People’s Party’s Youths (7 April 2012-24 May 2014), some of whom used to attack opposition politicians; and the DPP Cadets (30 May 2014-present date).

Through civic engagement, and appreciation of ideals of democracy, Malawi can become a shining example of countries that honour principles of democracy because, when all is said and done, democracy has to be lived, and not just hoped for.

Shrinking civic space and the capture of civil society organisations

Currently in Malawi many who used to be human rights activists have been swallowed by government via government positions, and human rights activists who use to speak out for the voiceless are now government agents who pin down the efforts of civil society organisations. The NGO Board coupled with the Council for Non-Governmental Organisations in Malawi are also acting as government agents by advising developing partners and funding agencies to fund civil society organisations who are registered and have paid up or renewed their membership of the Council, posing a threat to community-based organisations in Malawi. PEFENAP is interested in partnering with an international advocate to research thoroughly and challenge the NGO Board and The Council who are increasing the pressure on shrinking civic space.

In conclusion, the Malawi case shows that the state and civil society organisations are in a perpetual state of suspicion, making increased engagement between civil society organisations and the government a must. At the same time, civil society organisations have to be seen to be playing their role as partners in development by, among other things, offering checks and balances and leading by example in providing solutions to national challenges and problems. As things stand, civil society organisations seem to be doing well because, when compared to the government, they seem to be enjoying the goodwill of the international community which, after stopping making direct contributions to the national budget due to, among other factors, donor fatigue and mismanagement of public funds through what is called Cashgate, has been channelling financial resources to civil society organisations. They can, therefore, show the government that they do not mean ill by offering constructive criticism and suggesting ideas - as they have been doing through peaceful demonstrations and the delivery of petitions - and through means other than demonstrations, which the government seems to be afraid of. But this can happen if the government shows more seriousness in responding to issues presented by civil society organisations than in the past. All in all, Malawi’s democracy is work in progress.